However, as parents, there are may ways and resources available in New York child custody disputes to parents who will seek them. The most important purpose of any method chosen by parents is to convey to their children that both parents care about their children's personal safety and about making their love known to the children.
In New York child custody matters, the Court determines custody based on what it believes to be the best interests of the children. This aspect can be the most complicated and controversial component of a divorce in New York. Sometimes children become a bartering tool and their well being gets lost in the game of tug-of-war.
Child custody matters in New York affect children under the age of 18. When the parents disagree about issues of child custody, the New York Court will often appoint a law guardian who will make an investigation and issue a recommendation regarding child custody and an appropriate visitation schedule.
Sole Custody in New York child custody disputes: If the parents are not awarded joint custody, one parent will have sole custody of the children. Sole custody means that a parent has the authority to make legal decisions for the children. The non-custodial parent is awarded specific visitation with the children.
Joint Custody in New York child custody disputes: In joint custody, both parents have legal custody with one parent designated as the primary residential parent. Joint legal custody means that both parents have the right to make major decisions for their children. These decisions include residence of the child, medical and dental treatment, education, child care, religious education, extra-curricular activities, summer camp and recreation.
Shared Custody in New York child custody issues: In shared custody, both parents share legal custody with each parent having specific periods of responsibility with the children. This arrangement gives both parents the right to make major decisions on an equal basis for their children.
The New York Courts will
not award joint or shared custody unless the parents can demonstrate a
level of maturity, willingness and ability to set aside their personal
differences in order to decide what is in the best interest of their children.
In January, 2004, the New York Domestic Relations Law was amended to give the grandparents of a child residing in New York state custody rights in a case where the grandparents can demonstrate the existence of "extraordinary circumstances". Such an "extraordinary circumstance would be an "extended disruption of custody". This would constitute a prolonged separation of the child and the parent for at least 24 continuous months during which the parent voluntarily relinquished care and control of the child and the child resided in the household of the grandparents. The New York Court may find that extraordinary circumstances exist where the prolonged separation is less than 24 months, based upon other circumstances.
FACTORS FOR NEW YORK COURTS DETERMINING CHILD CUSTODY AWARD
No one factor is determinative in making a child custody award. The New York courts must weigh and balance the "totality of the circumstances" in making any custody determination. In deciding what is in the child's best interests, the New York court is required to consider many factors, such as:
* The effect of a separation of siblings;
* The wishes of the child, if the child is old enough;
* The length of time the present custody arrangement has continued;
* Abduction or abandonment of the child or other defiance of legal process by one of the parents;
* The relative stability of the respective parents;
* The care and affection shown to the child by the parents;
* The atmosphere in the homes;
* The ability and availability of the parents;
* The morality of the parents;
* The prospective educational probabilities;
* The possible effect of a custodial change on the children;
* The financial standing of the parents; and
* The parents' past conduct.
Additional factors that New York courts consider include:
* The refusal of a parent to permit visitation and/or the willingness of a parent to encourage visitation;
* Unauthorized relocation of the parent and child to a distant domicile; and
* Making unfounded accusations of child abuse.
Where either parent alleges that the other parent has committed an act of domestic violence against the alleging parent or a family or household member of either parent, and the allegations are proven by a preponderance of the evidence, the court must consider the effect of such domestic violence upon the best interests of the child.
A parent's ability to personally devote time to the child and his/her needs is an important factor.
As a matter of policy, New York courts tend to refrain from intervening with respect to the child's religious upbringing. However, courts may consider religion as a factor where a child has developed actual ties to a specific religion, or where a parent's particular religious practices threaten the health and welfare of the child.
Domestic violence considered a factor by the court in New York child custody and visitation proceedings
Domestic violence is a factor to be considered by the court in New York
child custody and visitation proceedings, regardless of whether the
violence occurred in the presence of the child or the child was a direct
victim of the violence.
“If you are the victim of domestic violence, you may request that the officer assist in providing for your safety and that of your children, including providing information on how to obtain a temporary order of protection. You may also request that the officer assist you in obtaining your essential personal effects and locating and taking you, or assist in making arrangements to take you, and your children to a safe place within such officer's jurisdiction, including but not limited to a domestic violence program, a family member's or a friend's residence, or a similar place of safety.
forms you need to obtain an order of protection are available from the
family court and the local criminal court (the addresses and telephone
numbers shall be listed). The resources available in this community for
information relating to domestic violence, treatment of injuries, and
places of safety and shelters can be accessed by calling the following
numbers.... (the statewide English and Spanish language 800 numbers shall
be listed and space shall be provided for local domestic violence hotline
Domestic violence does not terminate upon separation or divorce in NY. In fact, studies demonstrate that domestic violence frequently escalates and intensifies upon the parents’ separation. Therefore, at the time the court in New York must determine the custody and visitation of children, great consideration should be given to the corrosive impact of domestic violence and the increased danger to the family upon divorce in NY and into the foreseeable future.
In New York, courts are required to consider the effect of domestic violence on the best interests of children, where the allegations of domestic violence are proven by a preponderance of the evidence.
GRANDPARENT VISITATION ISSUES IN NEW YORK
A court determining a petition for grandparent visitation under Domestic Relations Law '72(1), must undertake a two-part inquiry:
First, it must determine whether the grandparent has Astanding@ to petition for visitation rights based on the death of a parent or equitable circumstances.
Second, if the court concludes that the grandparent has established the right to be heard, then it must determine if visitation is in the best interests of the child.
In general, the court should not lightly intrude on the family relationship against a fit parent's wishes. It is strongly presumed that a fit parent's decisions are in the child's best interests.
The New York State Unified Court System PARENT EDUCATION & AWARENESS PROGRAM
(Help for Separating or Divorcing Parents)
Parent education classes can help parents understand how their children might be feeling during the time parents are in the process of a divorce or separation in New York.
A New York Judge can order parties to attend parent education classes if their children are under the age of 18 and they are involved in court litigation regarding custody, visitation, divorce, separation or a child support proceeding. However, if there is a history, specific allegations or pleadings of domestic violence between the parents. The parent education programs certified by the parent Education and Awareness Program, have a safety plan or security for the class.
The Parent Education and Awareness Program=s website is: www.nycourts.gov/parented
The program staff may be contacted by phone at: 888-809-2798 as well as by E-Mail at email@example.com
PRE-NUPTIAL AGREEMENTS and CHILD CUSTODY
A prenuptial agreement is not required in New York State, but a couple may execute one if they wish. The prenuptial agreement can provide for any ownership and division of assets and allocation of debt upon a divorce; and can provide for no maintenance, or a set amount of maintenance, upon a divorce. A prenuptial agreement can also help to shield one spouse from the debt of the other spouse. While a prenuptial agreement can set forth the parties= desired arrangements with respect to custody and child support, the New York Court has the duty to make sure that such arrangements are in Athe best interest of the child@, and a Court will not enforce any child custody or support agreement that it finds is not in the child=s best interests. Prenuptial agreements must be in writing, signed, and acknowledged in a specified manner.
VISITATION AND PARENTAL ACCESS
In New York state, there is a presumption in the law that visitation with a non-custodial parent is the in the child's best interest.
When the non-custodial parent is incarcerated, this fact is not an automatic reason for blocking visitation. Generally, when the non-custodial parent demonstrates that he/she was involved in a meaningful way in the child's life prior to the incarceration and seeks to maintain a relationship with the child, visitation will be granted during the time the parent is incarcerated since the child can benefit from the visitation with his/her parent. It could be detrimental to an established relationship between the parent and the child.
A parent who is in prison does not forfeit visitation rights by being incarcerated. The parent=s incarceration, standing alone, does not make visitation inappropriate. However, visitation should be denied where it is demonstrated that under all the circumstances, visitation would be harmful to the child's welfare, or that the right to visitation has been forfeited.
How Manhattan based divorce attorney Ingrid Gherman can help you:
As a New York child custody lawyer also handling issues of child support and visitation, Ingrid Gherman understands that this is often the most disputed in a divorce with deep emotional and monetary impact on all parties. She understands that it is the duty of an attorney dealing with child custody and visitation matters in NY to always fight for what is in the best interest of the children and that this is the basis on which New York courts determine how child custody, support, and visitation are granted. These issues are often the most controversial component of a divorce and Ingrid Gherman, a highly experienced lawyer in matters of child custody, support, and visitation in New York, knows how to help her client who is dealing with these issues. In cases such as these, a child custody lawyer must also understand that the courts in New York City will often appoint a law guardian if there is a disagreement between the divorcing parents on issues of child custody or visitation. It is therefore essential that a NY divorce and child custody lawyer understand the rules governing law guardians in New York State and how to negotiate for the most effective child custody and visitation schedule for her client. She will take the time to discuss with her client the factors for New York courts determining child custody award so as to fashion a legal strategy that will bring a result that will win her client’s rights and also an outcome that is in the best interest of the child or children.
Ingrid Gherman, P.C.
225 Broadway, Suite 1405
New York, New York 10007
Attorney Ingrid Gherman, Esq. – divorce and matrimonial lawyer in New York, NY, NYC, Manhattan and greater New York City area
©2002 Ingrid Gherman, Esq.